Senators Continue to Grill Witnesses About Perceived Lack of Antitrust Enforcement Against Big Tech

WASHINGTON, September 25, 2019 – A Senate Judiciary subcommittee devoted to antitrust on Tuesday grilled witnesses about what appeared to a dearth of startups, and also expressed concern about a lack of antitrust enforcement.

Determining which acquisitions are beneficial and which aren’t is not as easy as it seems, said Antitrust Subcommittee Chairman Mike Lee, R-Utah. He said it was important that competition is unharmed and that consumer choice maintains stability.

While a hearing on September 17 focused on divisions and conflicts between the nation’s two antitrust enforcers – the Justice Department and the Federal Trade Commission – Tuesday’s hearing focused on “Examining Acquisitions of Nascent or Potential Competitors by Digital Platforms.”

The U.S. economy has churned out the lowest number of startup companies in decades, said Ranking Member Amy Klobuchar, D-Minn. Threatened competition is the sign of monopoly’s ever-increasing dominance, she said. In order to build the next great American company, the economy must have lower entry barriers for new ideas to take seed.

Antitrust enforcement isn’t working, said Sen. Richard Blumenthal, D-Conn. This is the case within the pharmaceutical, aircraft and digital industries.

The FTC needs to be more aggressive in confronting anti-competitive issues, he said.

Sen. Josh Hawley, R-Mo., said that he was increasingly concerned about the FTC’s inability to protect the public interest and competition, particularly where big tech is concerned.

Specifically, he cited the FTC’s investigation into how Facebook may be using strategic tactics to stifle its competition. Facebook has allegedly been utilizing Instagram’s platform to block content and terms related to Snapchat’s owner Snap Inc.

The witnesses present at the hearing acknowledged the negative side-effects of company acquisitions, but also noted that mergers may possess pro-competitive aspects.

Bruce Hoffman, director of the FTC’s Bureau of Competition, said that the Commission is committed to examining the effectiveness of its antitrust enforcement efforts.  The Bureau of Competition’s Technology Task Force helps deepen the agency’s understanding of technology markets and strengthens its ability to protect consumers from anti-competitive conduct.

Concerns about eliminating future market participants, Hoffman said, can arise when evidence shows that independent entry would have pro-competitive effects that would be lost with the merger.

Digital players in the market may be pursuing deals that fly under the antitrust radar, said Diana Moss, president of the American Antitrust Institute. Given big tech’s significant record of serial acquisitions, it’s imperative that enforcers consider the longer-term implications of market concentrations and barriers to entry.

Antitrust enforcers have the adequate tools to evaluate the competitive effects in digital technology markets, she said. They just need to use them. It’s time to address the weak enforcement of tech mergers.

Distinguishing the difference between nascent and potential competitors is crucial, said John Yun, director of economic education at the Global Antitrust Institute. Potential competitors are defined as firms that are predicted to have a competing product in the future, but not currently. Whereas a nascent competitor refers to a current product that could already become a potential competitor.

The acquisition of a potential or nascent competitor, Yun said, can clearly result in an outcome that is harmful to consumers and innovation. However, a merger can also unlock a great deal of consumer value.

American economic growth is dependent on the economic activity that comes from young firms scaling into successful companies, said Patricia Nakache, general partner at Trinity Ventures. Policymakers, entrepreneurs and venture capitalists must work together to encourage innovation.

Public markets are not as welcoming to small companies as they once were, she added. However, startups often view larger companies as potential customers or distribution channels. For that reason, these companies can provide unique insight to the market.

The Commission works hard on its investigations, Hoffman said, however it has limits on the actions it can do. The elements that the agency focuses on are capability and likely effects of these mergers, rather than the intent.

The results of such mergers could go either way, said Yun. The problem is that enforcers are not exactly certain what they are looking for regarding anticompetitive conduct.

The biggest acquisitions, said Moss, are not within social media platforms but with artificial intelligence, data analytics and cloud computing. Those are the industries that enforcers need to analyze, rather than the ones discussed the most on mainstream media.